Defamation
Defamation is one of the few civil claims where the first step is fixed by statute. A concerns notice has to come before proceedings, and the time limit is much shorter than for most civil matters.
General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.
For both sides, and quickly either way
Something has been published about you — a review, a social media post, an email to your industry, a newspaper article — and it is damaging. Or you published something and have received a letter demanding that you take it down and pay. Both situations are urgent, for the same reason: in defamation the deadline is short, and the steps that have to happen before proceedings take time of their own.
Since the reforms that commenced in 2021, the Defamation Act 2005 (NSW) requires more of a person bringing a claim than it used to. Section 10A makes serious harm to reputation an element of the cause of action, so it is no longer enough that a publication was defamatory: it must have caused, or be likely to cause, serious harm, and a judicial officer decides that question rather than a jury. Hurt feelings, without harm to reputation, are not what the section is directed at.
If you are the publisher, do not ignore a concerns notice and do not answer it in anger. The Act provides a structured way to respond, including an offer to make amends, and a reasonable offer that is refused can matter a great deal later. If you are the person defamed, remember that the limitation period for defamation under the Limitation Act 1969 (NSW) is much shorter than the general six-year period, so delay is expensive in a way it is not in other civil matters.
What the work actually is
Preserving the publication
Before anything else, capturing what was published, where, when and to whom, with dates and full screen captures. Material disappears, and a claim about a post nobody can produce is a hard claim to run.
Identifying the imputations
A defamation claim is not about the article. It is about the specific meanings the words convey about you. Pleading those imputations precisely is the technical heart of the work and shapes everything that follows.
Assessing serious harm
Whether the publication has caused, or is likely to cause, serious harm to your reputation as section 10A requires, and what evidence would establish it: the extent of publication, who read it, and what actually followed.
The concerns notice
Drafting the notice section 12B requires, so that it does the work the Act intends and does not create problems later. A notice that overstates or misstates the imputations is worse than one that is careful.
Advising a publisher who has received one
Whether the imputations are conveyed, whether a defence is available, and whether an offer to make amends should be made and on what terms. Answering a notice well is often the whole matter.
Working out whether it is worth it
Defamation litigation is expensive, slow and public, and running it republishes the thing you object to. For some publications the better answer is a takedown and a correction. We will say so where that is the case.
Questions people ask first
Somebody left a false review about my business. Can I sue?
Possibly, but several things have to line up. The review must convey a defamatory meaning about an identifiable person or entity, it must have been published to someone else, and under section 10A of the Defamation Act 2005 (NSW) it must have caused or be likely to cause serious harm to reputation. A concerns notice under section 12B must be given before proceedings. In practice, a complaint to the platform is often faster and cheaper, and worth trying first.
What is a concerns notice?
It is the written notice section 12B of the Defamation Act 2005 (NSW) requires an aggrieved person to give a publisher before commencing defamation proceedings. It must inform the publisher of the defamatory imputations the person considers are or may be carried by the matter, and of the harm the person considers to be serious harm to their reputation. A document filed to commence proceedings cannot be used as a concerns notice.
How long do I have to bring a defamation claim?
Much less time than for most civil claims. The Limitation Act 1969 (NSW) fixes a limitation period for defamation that is far shorter than the general six-year period for contract and tort, with only a limited power for a court to extend it. Because a concerns notice has to be given before proceedings can be commenced, the practical timetable is shorter again. Take advice as soon as you become aware of a publication.
It is true. Am I safe?
Truth is a defence, and the Act provides for justification and for contextual truth. But the defence has to be proved by the publisher, on admissible evidence, about the imputations the publication actually conveys — which may not be the ones you had in mind when you wrote it. Believing something is true and being able to prove it in court are different things.
Can I be sued for sharing someone else's post?
Republication is a real risk in defamation. Passing on defamatory material can itself be a publication, and the fact that somebody else said it first is not by itself an answer. If you are worried about something you have shared, take advice before you post about the dispute as well.
I received a concerns notice. What should I do?
Take it seriously, keep everything, and do not respond immediately or publicly. The Defamation Act 2005 (NSW) provides a structured way to respond, including making an offer to make amends, and a reasonable offer that is not accepted can matter to what follows. Time runs against a response, so get advice quickly rather than hoping it goes away.
Is a defamation claim worth running?
Sometimes, and often not. Defamation proceedings are expensive, slow and public, and they draw attention back to the publication. Where the aim is to stop the harm rather than to be compensated for it, a takedown, a correction or an apology achieved through a concerns notice usually serves you better. We will tell you honestly which situation you are in.
What to bring
Defamation matters move quickly and the evidence disappears. Capture the publication before you do anything else.
- The publication itself: a full screen capture or copy, showing the date, the author and the platform.
- Where it was published, and anything showing how many people saw or shared it.
- The date you first became aware of it, and how.
- Any concerns notice you have sent or received, and the date.
- Evidence of what followed: lost work, cancelled contracts, messages from people who read it.
- Any correction, apology, takedown or response already made by either side.
- The identity of the publisher, if you know it, and anything showing it.
- Anything you have published yourself about the dispute.